A WA proposal to introduce foetal homicide laws, indirectly sets up a competing set of rights that patronise women.

In response to the assault of a woman in Western Australia, which ended her eight-month pregnancy, WA Attorney General Christian Porter announced last month he would pursue legislation to strengthen penalties available in cases of assault of a pregnant woman that causes the death of a foetus. While violence against women should be treated as a serious criminal matter, Mr Porter said, should that violence result in the loss of a pregnancy the law should recognise the emotional trauma that would cause.

Mr Porter also said it would not be intended to use such laws to restrict access to abortion by stealth.

“The proposed legislation will be drafted to require an unlawful act to be done to the mother before any penalty can apply,” he said.

By contrast, a WA Opposition discussion paper released last week demanded greater steps be taken to enforce Apprehended Violence Orders, with electronic monitoring, among a range of other proposals to prevent, punish and limit the damage of domestic violence.

If a woman is beaten so severely that a foetus dies, that is a serious assault upon that woman. We live in a society in which domestic violence is still shockingly commonplace. Too many women are failed by the systems in place to protect them. Too many women are faced with the choice between staying in a violent relationship and homelessness. Introducing new laws specifically to better punish those who harm women enough to cause a pregnancy to end is further failing those women. While the heartbreak is beyond imagining, legislation covering what happens inside a woman’s body will do precisely nothing to prevent violence inflicted upon her.

Even if it did, if we can’t protect existing humans, what hope do we have protecting something as difficult to define as preborn life?

By restricting the legislation to cases of an “unlawful act”, Mr Porter said the legislation did not propose to limit women’s right to make her own choices. But everyone tries to affect a woman’s right to make decisions regarding her pregnancy. Colleagues, doctors and complete strangers in the street reserve the right to – at a glance – assess a woman’s decisions, behaviours and capacity to be a parent.

The former, fairly predictably, demands that since we’re discussing foetal personhood, surely we should acknowledge abortion as being the death of a person. The latter demands we also consider punishing pregnant women who are “reckless” or who choose the circumstances under which they give birth, in the same way as for neglecting if not endangering a person.

Talk about affecting a woman’s right to make decisions regarding her pregnancy. Every available option is damned including soft cheese. Which for some is life’s only solace.

Defining a foetus as a person whose life is valued at the same order of magnitude as the woman carrying it opens up a balancing act of rights. That anyone advocates charging women with a criminal offence should they choose to give birth at home, drink alcohol, or eat something ill-advised reveals the lack of trust society has in the judgement of women. It isn’t respecting women to value their uterus above everything else.

The question of when life begins will not be solved by laws or consensus. The way to give the best and most individual care for both women and babies is simple, trust women. Any attempt to punish “reckless mums” or to limit access to abortion prejudicially targets the most marginalised women. Because based on attributes like race, relative wealth and education, society has already decided it can’t trust them. If, as the AMA suggests, this law is extended to “reckless mums”, where does it stop? Will she be turned away from a delicatessen counter for her own good? Will a woman’s decisions after birth, when or if she goes back to work or how long she breastfeeds for also be grounds for charges? What about before pregnancy? Will a woman’s behaviour leading up to conception be considered inadequate to offer the very best in-utero accommodation for the foetus? In which case what about contraception? Will women, already subject to hurdles should they decide to terminate a pregnancy, be charged should they pursue that right enshrined by WA law? If doctors can’t all agree, who will be the arbiter? Shouldn’t it be the woman whose body we are discussing?

Assault on a woman is the result of someone else’s choice to be violent. Defining a foetus as a person does not address that choice. Women should not have to be deferential to society about the functions of their bodies. Women should know that should someone inflict violence upon her, pregnant or not, they will be dealt with seriously not because of a foetus within her, but because she has the same right as anyone else to live in peace and without fear.

Rachel Watts is a Perth journalist, the editor of a suburban newspaper and social media editor. Follow her on Twitter @wattsuppussycat.